Sunday, March 01, 2009

The case against an Irish Internet Death Penalty

I've written a short piece for today's Sunday Business Post on the implications of the Eircom / IRMA deal for Irish internet users. Unfortunately the Business Post is no longer updating its online content until late on Sunday (in a move to drive sales of the dead tree version?) so you can't see it there yet. In the meantime, here's the story as it was submitted:

Time to oppose an Irish Internet Death Penalty

Banning someone from internet use is a draconian punishment. In an era where internet access is increasingly essential – whether to send an email, look for a job, or book a flight – to deprive a person of this basic right is to seriously disrupt their daily life. In fact, an internet ban is such a sanction that the Irish courts have only ever imposed this punishment in extreme cases involving child pornography.

Yet in a private deal between Eircom and the music industry – a deal which the music industry is now trying to force on other Irish internet service providers – internet bans may become commonplace. The deal has been called “three strikes and you’re out” but it might better be called “three accusations and you’re out” as there would be no trial, no evidence held up to court scrutiny and no right of appeal. Instead, once the music industry makes three allegations that a particular internet user is sharing music then Eircom will disconnect that user, applying what’s often called an internet death penalty while acting as judge, jury and executioner.

What might this deal mean for the Irish internet? We can certainly expect users to be wrongfully accused. The company which the music industry previously used to identify filesharers – MediaSentry – has a track record of false accusations and was recently found to be operating illegally in several US states. As a result, the music industry has recently dumped MediaSentry and turned to Danish firm Dtecnet – but the inherent unreliability of this process remains.

Ironically, Eircom users will be particularly vulnerable to false accusations. In 2007 Eircom supplied up to 250,000 customers with wireless modems whose passwords were insecure. This means that a neighbour or passer by could easily use their broadband without their permission. Should they face an internet ban for the actions of somebody piggybacking on their wireless?

This reflects a broader problem where innocent third parties will be affected. Internet connections are not generally unique to an individual. Instead they’re shared – amongst families and flatmates for example. But three accusations will mean the connection will be shut off for every user so that others will suffer based on the alleged wrongdoing of another.

The deal is also undemocratic. The European Parliament has recently rejected a scheme to disconnect users based on mere accusations. In the United Kingdom similar proposals were ultimately rejected after public consultations and open debate. Here, however, the music industry is trying to foist this system on ISPs in a private deal while bypassing scrutiny by the Oireachtas, the Department of Communications and the democratic process.

In another part of this deal, as well as disconnecting users the music industry also wants Irish ISPs to impose a second type of internet death penalty, by preventing Irish users from reading certain websites. This time there is pretence of legal cover, in that the obligation would be to block websites only where a court order is granted – but the music industry has threatened to sue any ISP which opposes such an order, meaning that any court will hear only one side of the story. The result, if this scheme is allowed to proceed, will be to make ISPs responsible for censoring what their users can view on the internet.

If this precedent is set for the music industry, expect others to follow soon after. The publishing industry, for example, might target Google’s Book Search project which it has claimed infringes copyright. The Church of Scientology already has a track record of trying to silence criticism by claiming that its copyright is infringed by certain sites. Diebold – a US manufacturer of electronic voting machines – has been found by the US courts to have abused copyright law to shut down internet sites in order to conceal flaws in its technology. If Irish ISPs become internet censors then similar plaintiffs can be expected to try their luck here.

Quite apart from civil liberties concerns, there are also commercial costs. If this deal is allowed to proceed it will harm Ireland’s reputation as an internet-friendly country. By requiring companies to police the actions of their users and censor what they can see – a duty which they are not subject to in other jurisdictions such as the United States – it will drive up costs (for both companies and users), harm inward investment and encourage technology firms to relocate elsewhere.

In short, this deal is an unacceptable threat to Irish internet users and businesses. Fortunately, so far only Eircom has signed up. Other ISPs are still considering whether to cave in to the threats of the music industry. There is still time for them to do the right thing and say no to a privatised internet death penalty.

TJ McIntyre is a solicitor, Lecturer in Law in University College Dublin and chairman of Digital Rights Ireland.

The link to sbpost.ie above does not work for me (Safari says that the site is not found). Yet I can find their website in google which returns www.sbpost.ie. Could you prepend "www." to the link to SBPost, just in case?

Sinead - that's a fair question. The answer is that Eircom have published no details of how they propose to deal with these cases nor (accepting the theory that widely terms of use mean that they can do what they want) would they be under any obligation to apply fair procedures. It's not in the commercial interests of any organisation to set up any elaborate or expensive internal appeal mechanism if they can avoid doing so, and there will be no external appeal mechanism. Of course, public pressure or fear of a PR backlash might prompt this to be done by some (possibly not all) ISPs - but it's still not a substitute for a right to have a case determined by a court or even some outside body such as ComReg.

I must say that I am puzzled by the assumption that Eircom's T&Cs and/or its ComReg licence will permit the conduct postulated here and by many other commentators. I am equally puzzled by ComREg's silence on the whole affair. However, I have now aksed (sic - I am from Munster :-) )ComReg to make a statement and no doubt we can expect one soon.